Siman 232

Ona'ah only applies to the price, but regarding measure, weight, and count, ona'ah is not applicable; rather, it is an error. Therefore, one who sells to his fellow by measure, weight, or count and erred, the purchase stands and the error is returned forever. There is no distinction between a small error and a large error, and there is no fixed time for this as there is with ona'ah, for this is like theft and has no fixed time. Furthermore, there is no cancellation of the purchase in this, for the laws of ona'ah and cancellation of the purchase apply only to the value of the purchase, but regarding the calculation, this is not applicable at all. How so? If he sold him one hundred walnuts for a dinar and they were found to be one hundred and one or ninety-nine, and similarly much less or much more, the purchase is acquired and he returns the error even after several years. Similarly, if the money was found to be less or more than the count they agreed upon, they return to one another. Even after they performed a kinyan from his hand that he has nothing remaining with his fellow, it is returned, for it is a kinyan in error. It has already been explained in siman 218 that regarding land, in a deficiency of measure, there is sometimes a cancellation of the purchase when he does not have land adjacent to it to complete the measure, such as when he said to him that its length is exactly such-and-such, see there. Similarly, sometimes even with movable objects the purchase is void and he may retract. How so? If he was holding a sack full of walnuts and said to him, "Take this sack for a dinar, and it contains a se'ah of walnuts," and he went and measured it and a se'ah was not found in it, he may retract even though the seller wants to complete the se'ah for him, for he purchased this sack from him under the assumption that it contains a se'ah, and since it does not contain a se'ah, it is a purchase in error. But if there was a sack of walnuts before him and this one knows that it does not contain the amount of the measure, and this one says, "Here is a se'ah of walnuts for you for a dinar," and he measured it and did not find the measure in it, he has acquired it and [the seller] shall complete it for him, for he recognized that it did not contain a se'ah and took it with the intent that he would complete it for him [Tur].

One who receives money from his fellow, whether it is money from a sale, a loan, or a repayment, and found a surplus in them, even if he did not claim it, he is obligated to return it to him if the error is within the range that the mind errs. And how much is within the range that the mind errs? According to our custom, where we count one by one or two by two, it is always within the range that the mind errs [Tosafot Bava Metzia 64a], for he skipped the numbers and erred. In the time of our sages of blessed memory, they were accustomed to count five by five or ten by ten, and therefore they said [ibid.] that if the surplus can be divided to extract them ten by ten or five by five, and there are not one or two extra that do not amount to five or ten, one must say that he erred and skipped in his calculation. For example, if there are ten extra, we say that he erred between fifty and forty, that he should have said fifty and said forty, or between forty and thirty. And if the surplus is five, we say that he counted five by five and erred similarly in this. And even if the error is in tens and also fives, such as if there is a surplus of fifty-five, we say that he counted five by five and erred once in the tens, that he should have said three times five and said four times and erred in the fifty, and in the five extra he erred once more between three fives and four. And if fifteen or twenty-five are extra, he erred three or five times in the fives. But if there are one or two and three and four extra beyond the fives, it is within the range that the mind does not err, provided that these extras cannot also be accounted for by signs. For example, if he needed to give him eighty and there were eight or sixteen extra, this too is called that which the mind errs, for perhaps when he counted ten he set one aside as a sign that there is one time ten, and when he counted twenty he set aside another one, and so for all of them, and he afterwards mixed the signs with the money and there were eight extra. And if there were sixteen extra, we say he counted in fives and set aside one as a sign for each five and afterwards mixed them. And our sages of blessed memory did not concern themselves that he erred to count six instead of five or eleven instead of ten, for if so, it would always be within the range that the mind errs.

If the error is in an amount where the mind does not err, even if only one was in an amount where the mind does not err and the remainder was such that it was possible to think it would be in an amount where the mind errs, we say that he intended to give him these remainders as a gift, or perhaps he robbed him and is ashamed to tell him and included it for him now in the calculation. And even if he never had any business with him at all, it is possible to say that another man robbed him and requested of this one: when you give so-and-so your money, include for him in the calculation such-and-such. And it has already been explained that in a place where they count one by one or two by two, as is the custom in our time, it is always in an amount where the mind errs. And if the custom is to count only two by two, then two is in an amount where the mind errs. And even also among us, if the error was very large out of proportion, such as if he needed to give him twenty coins and gave him fifty, it is in an amount where the mind does not err. However, with assignat money, which are the royal notes where there are large ones up to one hundred rubles and small ones down to one ruble, and he gave him a three or a five in place of a one and the like, it is always in an amount where the mind errs, for such errors are very common [it appears to me].

One who sells to his fellow land, or a slave, or an animal, or movable goods, and a defect was found in the purchase, and the defect was not in the open such that the buyer must have seen it, and presumably the buyer did not know of it—he may return it even after a long time. It is not similar to ona'ah in a purchase, for a defect constitutes a mistaken purchase. This is specifically provided that he did not use it after he knew of the defect and it was in his power to inform the seller. But if he used it after he saw the defect and was able to inform the seller and did not inform him that he is retracting, he has waived his claim and cannot retract. This is specifically when the purchase is not a living creature, but with a living creature, the use is not evidence of his waiver, for he was forced to use it to profit for its sustenance [Netivot HaMishpat]. And likewise, if he did not use the purchase, even though he has not yet informed the seller, this is not a waiver since he did not use it. And if he informed the seller that his desire is to retract the purchase, and in the meantime he uses it—if the buyer was a Torah scholar who knows the law that use constitutes a waiver, his notification is of no avail, for who forced him to use it? Certainly he waived his claim. And if he was of the common people, his use is not a waiver since he informed him. But when he did not inform him and used it, it is clear evidence that he waived his claim, for even if he did not know the law, nevertheless, he should have informed the seller [as mentioned above, and all is well]. And even though regarding ona'ah we wrote in siman 228, section 8, that use is not evidence of waiver even in more than the measure of ona'ah, it is different there; since regarding the object itself he was not defrauded but rather in the price, it is possible that he thought they would eventually settle between them. But with a defect, where this is not the object he desired to buy, why should he have used it? And there we explained this as well, see there. And use that is out of necessity, such as being on the road or the like, certainly this is not evidence of his waiver.

There is one who wished to say that if the defect was something that the buyer could have discerned, tested, or tasted, and he was not careful to do so, he cannot retract, for presumably he waived his right. However, there is no basis for this, and many disagree with this [Mishneh LaMelech chapter 15, Sha'ar Mishpat, Maharitatz]. And there is one who wishes to say that, in any event, if he used it after he was able to discern it, it constitutes a waiver. And there is yet another who wishes to say that if before the conclusion of the sale he was able to discern it and did not examine it, it constitutes a waiver. And all these matters do not appear to be the law. And we have already clarified in siman 228, section 7 and section 8, that specifically tasting constitutes a waiver, but in a case where he was able to taste and did not taste, this is not a waiver. And all the more so regarding a defect; is the buyer obligated to entertain the thought that the seller cheated him? And shall we, based on such a slight assessment, obligate the buyer who bought an item and afterwards a defect was discovered in it? And so it is implied from all our teachers, the Rishonim, that only usage after he became aware of the defect constitutes a waiver, and nothing else. And so is the primary law.

A purchase in which a defect was found, one does not calculate the reduction of the defect and uphold the purchase. Even if he sold him an item worth ten dinars and a defect was found in it that reduces its value by an issar, he returns the vessel and takes his money, and the seller cannot say to him, "Here is an issar," for the buyer can say, "I want a complete object." And it is not similar to the return of ona'ah up to a sixth where the purchase stands and he returns the ona'ah, because in the essence of the object there is no ona'ah, only in the price, which is not the case with a defect. And likewise, the buyer cannot force the seller to uphold the purchase and return to him the reduction of the defect, for the seller can say to him, "Either take your money and return my purchase to me, or do not claim from me the reduction of the defect." However, when the buyer wants to uphold the purchase and not claim the reduction, the purchase stands, and the seller cannot cancel the purchase even if it increased in value significantly afterwards with the claim, "Since you have the power to cancel, I also have the power to cancel it," for the cancellation of the purchase is only for the benefit of the buyer, as was written in siman 227 regarding ona'ah. And even according to the "there are those who say" there, it appears to me that regarding a defect, all would agree that the seller cannot cancel the purchase, for regarding ona'ah it is possible that he did not know the price, but regarding a defect, he presumably knew.

What is called a defect? Anything that the people of the province have agreed is a defect for which a transaction is returned, for such a thing one returns it; and anything they have agreed is not a defect, one does not return it for that, and there is in this only the law of ona'ah, unless he specified at the time of the acquisition that such a thing should not be found in the transaction, for then it voids the transaction, as anyone who conducts business without specification conducts business according to the custom of the province. Regarding a defect, there is no distinction between a homeowner who sells and a shopkeeper. And likewise, if it became known that the object is stolen and distress or loss could reach the buyer from this, you have no greater defect than this and the transaction is void.

If the seller denies the buyer and says that you knew at the time of the purchase that it had such a defect and you reasoned and accepted it, and the buyer denies him, or if the seller says that the defect occurred while in your possession and the buyer denies him, the law shall pierce between them. And since the seller is the possessor, he shall swear a shvuat hesset that it is as he says and be exempt. And if the buyer has not yet given the money, he shall swear and the purchase is voided. And they may reverse the oath upon one another [it appears to me].

If one purchased many animals or movable goods and a defect was found in one of them, if they are separate items that do not require one another, and also the buyer does not specifically require all of them, or even if he requires all of them but it is easy to purchase another like the one in which the defect was found, the entire purchase remains valid except for that one in which the defect was found. Furthermore, the seller cannot say "either cancel the entire purchase or uphold it all," unless he shows a proper reason in beit din that he cannot cancel part and uphold part. See siman 216.

An incident occurred involving Reuven and Shimon who lived in one place, and Reuven had houses in another city and sold them to Shimon. Shimon knew the houses, but before the completion of the transaction, extortionists entered the houses and damaged some areas, blackened the walls with smoke, and uprooted the doors of the house and the windows, and they did not know of this. In the meantime, they completed the transaction, and now Shimon wishes to retract, and Reuven claims that since it is a passing defect, he should deduct from the money so that with this money he can return the house to its former state and the transaction will be upheld. The Rosh ruled that the law is with Reuven, for he sold him a house and it is still called a house. So too, a defect that is not in the body of the house, such as if another has a right of way over it or a water channel passes there, he removes the defect and the transaction is upheld. But if the defect is in the body of the house, such as if he said that they have sound walls and one of them was found to be dilapidated, he cannot build him a sound wall, and so too anything similar to this, for when he builds it, it will be a new entity and it is like a thing that has not yet come into the world [Netivot HaMishpat]. But in the incident of the Rosh, this is not like a new entity since the essence of the house remains. And regarding a matter that is not in the body of the house, the buyer cannot say "why did you defraud me," because the seller can say "such was my intention, to repair everything for you well," and this is not ona'ah since it is not in the body of the house [as is evident from the Shulchan Aruch and the later authorities, that the reason of the Rosh is not because the seller did not know of this].

Anyone who purchases without specification only purchases a thing that is complete and free of any blemish. And even if the seller specified and said, "On the condition that you do not return it to me due to a blemish," this is merely "fattening words," and the purchaser can retract until the seller specifies the blemish that exists in his sale and the purchaser accepts this blemish upon himself explicitly. Without this, the purchaser can say, "I imagined that it had no blemish, and you only spoke to quiet my mind, as if it were a precious purchase even if it had a blemish." Or, if the purchaser says to him, "Any blemish found in this purchase that reduces its value up to such-and-such an amount, I accept it." And the reason for the matter is because anyone who waives must know in detail what he is waiving, as has been explained in siman 227, section 22 regarding one who waives ona'ah, see there. And the matters are a kal vachomer: if regarding ona'ah, where one can only retract until the time it takes to show it to a merchant, even so it is not a waiver until he specifies how much the waiver is, all the more so regarding a blemish, where one can always retract, that he must specify clearly what the blemish is or the extent of the blemish. And know that a claim of blemishes only applies to a thing that is not visible to the eye, such as if he sold him a silver vessel and told him it was pure silver and it was found to have an admixture of copper, and the like. But a thing that is visible to the eyes, such as if he sold him a wooden vessel and the seller told him it was of gold or of silver, since the purchaser sees it, he cannot claim anything regarding this, for perforce the explanation of the matters is that it is as good as silver or gold, in the manner of sellers who praise their purchase and dub them with the name silver and gold, and the like in all merchandise.

The Rambam, of blessed memory, wrote in chapter 15 of Hilkhot Mekhirah: One who sells a cow to his fellow and enumerated within it visible defects and defects that are not noticeable, and it did not possess any of those visible defects that he enumerated, but a defect was found from among those that are not noticeable—this is a mistaken transaction and he may retract, even though he specified the defect that was found. For the buyer says: "When I saw that it did not have these visible defects that he enumerated, I said to myself that just as it does not have these, it does not have those that are not visible that he enumerated, and he only enumerated these defects in order to put my mind at ease." How so? "This cow is blind, it is lame, it is a biter, it is a coucher," and it was found to be a coucher only—this is a mistaken transaction. If it had all the defects he enumerated, it is not a mistaken transaction. Similarly, if it was lame and was found to be a biter, even though it is not blind, it is not a mistaken transaction. If he showed him the defect it has and said to him, "It has this defect, and such-and-such defect, and such-and-such defect," even though those defects he enumerated are not visible, and all or some of them were found in it, it is not a mistaken transaction. Thus far his words. And according to his words, it is not a mistaken transaction except specifically when he mentioned a defect that is not noticeable along with visible defects, and it had none of the visible ones at all, and it only had the defect that is not noticeable. For then the buyer can say: "Since I saw that it had none of the visible ones at all, I imagined that it also did not have the one that is not noticeable." But if it had even one defect from the visible ones, or if all the defects he added were not noticeable, or if this defect that it had was from the visible ones, it is not a mistaken transaction [the Gra]. For when the defects he added are not noticeable, he cannot say "since I saw that it did not have all the defects he reckoned," for how would he know, since they are not noticeable? And if this defect was also from the visible ones, even though he saw all the defects and they are not there, nevertheless he should have been concerned and looked, since it is from the visible ones. Similarly, if it had one defect from the visible ones, even though the rest of the defects he reckoned were not in it, he should have been concerned for the defect that is not noticeable; for since it has one revealed defect, perhaps there is another hidden defect that the seller reckoned, and since he did not investigate, he waived his right regarding this defect. And even though he showed the buyer the defect it has and said to him, "See this defect, and it has other visible defects" which he reckoned, "and another hidden defect," we do not say that the buyer imagined that since he showed him this defect and he saw that it does not have the rest of the visible defects, presumably it also does not have the hidden one. For it is not so, as he certainly should have been concerned since it has at least one defect, and all the more so if it has more defects, and since he did not investigate, he waived his right.

But the Tur and the Beit Yosef wrote: If there was one visible defect in it and he showed it to him, and said to him, "It has such-and-such a defect and such-and-such a defect" which are not visible, and those non-visible defects that he mentioned were found in it, this is not a mistaken transaction, even if all the defects he mentioned were in it, for he did not deceive him since he only mentioned to him defects that were in it. Thus far their words. It is implied from their words that if he enumerated additional visible defects and they were not in it, this is a mistaken transaction, for he can say: Since he showed me this revealed one, and I saw that the other revealed ones were not present, I imagined that the non-revealed ones were also not present. And even though when he did not show him the visible defect but rather enumerated it among the visible defects, and additionally enumerated non-visible defects, and there was found in it one visible defect and a non-visible defect, this is not a mistaken transaction according to the Rambam as is explained there—and the reason is that since one visible defect was found in it, he should have been concerned for the non-visible one as well—nevertheless, when he explicitly showed him the visible one and he saw that the other visible ones were not present, the buyer can say: I understood from him that only the defect he showed me is in it and no more, and it is a mistaken transaction, for if there was another defect, why did he show me this defect specifically? He should have only enumerated them verbally. But if in truth he did not enumerate additional visible defects to him, only that in secret the buyer should have investigated and examined well even when he showed him this defect, nevertheless, he did not enumerate to him what was not found among the visible ones, and since he did not bother to investigate, he waived his right even if all the hidden defects he enumerated were found in it, and we do not say that he certainly did not waive his right regarding many defects. And all the more so if only one of the hidden defects was found in it. [According to what I have written, all that they questioned regarding the Tur and Shulchan Aruch is settled].

And if he said to him, "This specific defect is in it," whether from the visible ones or from those that are not visible, "and there are also other defects in it," and he did not specify them explicitly—even if no defect was found in it besides this specific defect, this is not a mistaken transaction. And he cannot say, "Behold, I saw that there are no other defects in it, and I imagined that this one is also not in it, and I did not concern myself with seeing it." For in any case, since he specified this defect explicitly and did not specify the other defects by their names, he should have investigated and examined it, even if it is not visible, and all the more so if it is visible; and since he did not investigate, he waived his right. This is according to the explanation of Rashi in Bava Metzia 80a, and for the law, everyone agrees.

If he mentioned to him two explicit defects and one was found in it, this is not a mistaken transaction. For even though when he enumerated many visible defects and only the hidden defect was found it is a mistaken transaction, as I have written, nevertheless, regarding two defects he cannot say: "Since I saw that one does not exist, presumably the second also does not exist." For this is only applicable when he enumerated many defects to him [Tosafot ibid. from the Tosefta].

One who sells a male slave or a female slave, the buyer cannot return them due to defects when found in them if these defects do not nullify them from their labor, and in the language of the Gemara they are called a simpon. For in any case, if this simpon is visible, he presumably saw it already, as one inspects a slave extensively. And if it is not visible, such as a mole or a wart on his flesh, or a dog bite on his flesh, or bad breath or nasal odor and the like, since it does not nullify him from labor, what does he care, for slaves are only for labor. But if there was found in him a severe skin disease or an illness that weakens his strength, or if he was an epileptic or demented without full consciousness, this is a defect, for such things nullify him from labor. And so too if there was found in him tzara'at or the like from loathsome things, this is a defect because a person's soul is repulsed by them, and it turns out that he will not be able to serve him with eating and drinking as he will not be able to endure it. And so too if the breath or nasal odor is strong, it is also a defect [it appears to me]. And so too if it is found that he is an armed bandit, this is a defect because the government will seize him. And so too if it is found that he is conscripted to the government for labor, this is a defect because the government seizes him for labor whenever they wish. But when he is found to be a thief or a kidnapper or a stealer of souls or a habitual runaway or a glutton and a drunkard and the like, this is not a defect that can nullify the purchase, because all slaves are under the presumption that they possess all these evils, unless he specified that these evil traits should not be found in him. And some say that a stealer of souls is a defect like one conscripted to the government. And if he is found to be a dice player, this is not a defect, for all slaves are under such a presumption unless he specified explicitly. And in our times, the sale of slaves has been abolished by the government.

A defect voids the sale, even a defect that the seller himself did not know of; if it is only clarified that while the object of sale was in the domain of the seller this defect came into being, the sale is void, and he takes it back and returns the money to the buyer. However, regarding a matter where there is a doubt in which place the defect was born, it is upon the buyer to bring proof that the defect was in the domain of the seller. And if he did not bring proof, the loss is his, and even if he did not yet give money, he must pay the seller, for whenever a doubt is born in his domain, it is upon him to bring proof, whether he comes to extract or whether he comes to retain what is in his hand, as I wrote in siman 224. Therefore, one who sells a beast to his fellow and he slaughtered it and it was found to be a certain treifah, if it was known that it was a treifah when he bought it—for example, if the reticulum was perforated and the surface of the wound had scabbed over, for then it is known that there are at least three days since the perforation was made, as in less than this it is impossible for the wound to scab—if he bought it within three days, it is a mistaken transaction, for behold it is clarified that in the house of the seller it had already become a treifah, and the seller must return the money to the buyer and receive the hide and the meat for himself. And if he did not buy it within three days, or if he bought it within three days and the surface of the wound had not scabbed, the buyer loses, and even if he did not yet give money, he is obligated to give. And in section 24 it will be explained that this law which we said, that even when the buyer is in possession he must pay because the doubt was born in his domain, this is only in a matter where there is a presumption or a majority that assists the seller.

Even terefot that we declare terefah by virtue of a legal doubt also nullify the sale, provided it is clarified that it occurred while in the possession of the seller. The seller cannot say, "Bring proof that it is a terefah," for since we declare it terefah in any event, and he purchased it for slaughter, you have no greater blemish than this. This is true even when the terefah is only due to a stringency of the Geonim or a stringency of the great later authorities. Therefore, regarding terefot due to sirchot, even though their status as terefah is due to doubt, nevertheless, if it is clarified by experts that the sircha occurred in the house of the seller because it is impossible for such a sircha to have occurred since the time of the purchase, the buyer nullifies the sale and takes back his money. There are those who disagree regarding sirchot, since it is a very common occurrence, it is not similar to all other terefot, and the buyer should have made a condition; since he did not make a condition, he waived his right. And since it is a legal doubt, if he has not yet given the money to the seller, he shall not give it [it appears to me].

This fact, that a doubt of treifut voids the sale, is only when he purchased it explicitly for slaughtering. However, if he purchased it for plowing or to raise offspring, a doubt of treifut does not void the sale. For a certain treifut voids the sale even when it is not for slaughtering, as the treifut is weak for work, does not live long, and does not give birth, and you have no greater blemish than this. But regarding a doubt of treifut, he can say: perhaps it is not treifut, and did you not purchase it from me for a purpose other than slaughtering? [Netivot HaMishpat]. And if he purchased it without specification, one must understand according to the status of the buyer for what purpose he purchased it, whether for slaughtering or for another matter. And see what I wrote in section 36:

If he stipulated with him that he is purchasing it from him even if it becomes treifah, then even when it becomes disqualified through slaughter such that it is a nevelah, the transaction stands, for in the language of people there is no distinction between treifah and nevelah [Rivash]. And it appears to me that in large places where many slaughter ab initio in order to sell to non-Jews, even if he purchased without stipulation and it became treifah, the transaction is not void. And even if the majority of slaughterings are for Jews and a minority are for non-Jews, we do not follow the majority in matters of money if the seller is the possessor who has already taken his money.

One who sells to his fellow a thing that had a defect in the purchase which voids the purchase, and the buyer, before the defect was revealed to him, caused another defect in it: if he did something that is the way of people to do, he is exempt, and the seller receives his object back with the defect. And if he did something that is not the way to do, he returns the purchase to the seller and pays him the value of the defect he caused. And the essence of this law we learned from what has been explained, that when one slaughtered it and it was found to be treifah, the purchase is void even though the buyer added a defect to the purchase by slaughtering it. However, since this is the way of people to do, he does not need to return to the seller the depreciation of the slaughter. And regarding a thing that is not the way to do, although the seller cannot say "I will not accept it back because of the defect you caused"—since he did it with permission, for behold, he thought it was his—nevertheless, for the defect he caused he must pay him; since he deviated by doing what is not the way to do, he is considered somewhat like a damager.

And similarly, if one purchased a sheet and tore it to make a shirt, and afterwards the defect became known due to the tearing, he returns the torn pieces to him, for he did not effect a change. And if he sewed it and afterwards the defect became known in it, if he improved it through this, he takes the value of the improvement of the sewing from the seller; and we calculate its value according to the defect, for example, if he purchased it for ten dinarin and due to the defect it is only worth eight, and now it stands at nine, it is a dinar of improvement [Sma]. Therefore, if he already paid him, he returns eleven dinarin to him, and if not, he returns a dinar to him, and so too in any similar case.

One who sells land to his fellow and he consumed its produce, and after some time a defect was discovered in it that voids the sale—if the buyer desires to return the land to the seller, he must return to him all the produce he consumed. For since it was revealed through the defect that the land is not his but rather the seller's, he has surely consumed the produce of another, and it is theft if he does not pay. He must deduct the expenses and the labor, and the remainder he shall return [it appears to me]. This is not comparable to a gift that was voided where he does not need to return the produce, as I wrote in siman 246, for there we say that the intent of the giver is such that the gift should be upheld until its voiding is known according to the matter explained there. However, in a sale, had the seller known that the sale would be voided, it is obvious that he would not have given him the produce [ibid.]. And likewise, if it was a courtyard and he resided in it and it was voided due to a defect, the buyer must pay him rent until that time for this same reason.

Reuven who sold cheeses to Shimon, and after three days he opened them and found them moldy, they shall ask cheese-makers in how much time it is fitting for such rot to occur. And if they say that it was still formed while with the seller, it is a mistaken purchase and he returns the money to him. And if the matter is in doubt, the burden of proof is on the one who seeks to extract from his fellow. And if the buyer has not yet given money, he does not need to give it; and if he gave it, he cannot extract it. And even though we wrote in section 17 and in siman 224 that whenever the doubt arises while in his possession, the burden of proof is upon him even when he does not come to extract—it is different there, for the seller has a chazakah, and that is a chazakah based on the majority, as the majority of animals are kosher, and so too with other objects and matters where we can establish them upon their prior chazakah. But cheeses do not have a chazakah because it is their way to become wormy, and due to this reasoning alone—that the doubt arose while in his possession—there is no obligation upon him to bring proof except when he comes to extract, and not when he comes to retain [ibid.]. And according to this, when a defect is discovered in a purchase and he has not yet given money, and there is a doubt as to when the defect was formed, the judge must investigate if there is in this any chazakah or majority that assists the seller or not. And some say that the burden of proof is always upon the buyer as mentioned there, but the great Acharonim agreed with the first opinion.

An incident occurred regarding Reuven who sold Simon skins of oil, and he did not open them but rather relied upon Reuven who told him that it was good. Afterwards, when he received the oil and subsequently opened it, he found it to be turbid. If there were witnesses that this was the oil he sold him—that the buyer did not switch it—and that he had sold him clear oil, the transaction would be void, for there was not enough time for it to have spoiled while with the buyer. However, there were no witnesses in the matter, and the buyer says that he purchased clear oil from him and also that he did not switch it. The seller has two claims, for he can say that he switched it, and he can say that he did not sell him clear oil, and he had already received the money. The buyer wanted to swear and void the transaction. The Rosh, of blessed memory, ruled that it is not within his power to swear and extract money, for if he had not yet paid him, he would be believed with his oath, but to extract money with an oath is not possible. Therefore, the seller shall swear that he gave him good oil according to the sale, and this includes everything: either that it was truly clear and he switched it, or that he did not sell him clear oil, as even turbid oil is called "good" for people who want inexpensive oil. And if he does not wish to swear, then the buyer shall swear that he sold him good and clear oil and that he did not switch it, and he shall return the oil to the seller, and the seller shall return his money to him. Or, if it is the will of both of them that the transaction be upheld, they shall assess how much its value is less than good and clear oil, and he shall return the deficiency to him. But without consent, we cannot compel the buyer to uphold the transaction, for this is not ona'ah in the transaction but rather a mekach ta'ut in the essence of the merchandise. And even if the difference does not reach a sixth, the transaction is void, for this is not what he purchased at all, and it is similar to one who purchased fine wheat and it was found to be bad, where the buyer can retract, as I wrote in siman 233.

One who sells an item that has a hidden defect, and the purchase was lost due to that defect, he must return the money. How so? One who sells to his fellow an ox that has no teeth, and the buyer placed it with his cattle and would place the food before all of them and they would eat, and he did not know that this ox was not eating until it died of hunger—he returns the carcass to him, and the seller returns the money to him. And so too regarding anything similar to this. In what case is this stated? When the seller is a homeowner who knew of the deficiency of the ox. But if the seller is a middleman who buys from this one and immediately sells to that one, and does not keep the purchase with him and did not know of the defect, the Rambam wrote in chapter 16 that the middleman takes a heset oath that he did not know of this defect and is exempt. This is because the buyer should have checked the ox by itself and returned it to him before it died, so that the middleman could return it to the first seller; and since he did not do so, he, the buyer, caused his own loss. Thus far his words.

The Rosh and the Tur disagree with him and hold that the middleman must also pay, for even though he was defrauded, he may not defraud others; and our teacher, the Rema, decided accordingly. It appears to me that the Rambam, of blessed memory, certainly also admits to the essence of this law, that even when the middleman was defrauded, he may not defraud others and the loss is his. That which the Rambam, of blessed memory, obligated the buyer is only in this case, where he considers him negligent in that he did not take care to examine it very well; since he knew that the one selling to him was a middleman and he knew that he did not know its nature, he should have seen if it eats properly or not. For just as if the buyer did not have other animals and did not watch over it to see if it eats, he would certainly be negligent and liable even if the one selling to him were not a middleman, so too regarding a middleman, even if he stood it with other animals, he should have watched over it individually, and the middleman would have returned it to the one from whom he bought it. But in a matter where there is no immediate examination and the middleman was defrauded, such as selling a ring under the assumption that it is entirely gold and tin was found inside it, he is certainly obligated to pay. [And the difficulty raised by the Tur from Bava Metzia 42b, the Beit Yosef settled it, that according to the conclusion it is not so; and see there that, on the contrary, there is a proof for the Rambam from the fact that they wanted to obligate the guardian were it not for the fact that he handed it over to a cattle-herder, even though he too, if he had many animals, would be liable in the case of a middleman according to the conclusion; and besides this, there is no proof from there, as is evident from the Rambam, chapter 11 of Laws of Inheritances, law 5, with chapter 6 of Laws of Monetary Damages, law 4, for he does not hold like the Tosafot there, beginning with the words "Let us say," and orphans are different as it is not relevant that they should examine; and examine this closely].

Since we obligate the broker regarding the ox even though the buyer was somewhat negligent in not examining it well, all the more so in a matter where the buyer was not negligent at all—for example, if he sold him a ring under the presumption of gold and afterwards the buyer broke it and tin was found in it—that he is obligated to return his money. Even though the seller was also cheated in it and was a broker, nevertheless, not because of this does he have the right to cheat others; and the Rambam also holds this way, as I have written. And similarly, if he bought a garment under the presumption of silk or fine linen and afterwards it became clear that it was not so, the transaction is void and he returns his money to him, even when he is a broker. However, if he does not believe the buyer from him that tin was found in it, and the buyer is unable to clarify—for example, that he broke it into pieces and not in the presence of witnesses, and similarly with other things—he cannot extract his money from the seller even with an oath, for we do not extract money based on an oath, as I wrote in section 25. Therefore, our teacher, the Rema, ruled that the seller swears that he does not know of this, that there was tin in it, and is exempt. And even though it is a claim of "perhaps," for the buyer does not know for certain that the seller knew there was tin in it, nevertheless, since the buyer claims "it is certain to me that there was tin in it and you are obligated to me," and the seller responds to him "I do not know if I became obligated to you," he must swear that he does not know, as I wrote in siman 75 [Shach]. And it is not similar to all claims of "perhaps" where one claims "perhaps you are obligated to me," but here he claims "certainly you are obligated to me," even though he does not claim "certainly you know," since he does not say "certainly you do not know" [and that which they questioned the Shach from his words in siman 72, subsection 51, is well-settled]. And proof for this is from what our teachers, the authors of the Shulchan Aruch, ruled in siman 255, section 5, that the heirs are obligated to swear even though the claimant does not claim "certainly" that he did not tell them that they paid; see there. And it is not similar to what will be explained in siman 400 regarding an ox that pursued another ox and it was damaged, where this one says "your ox damaged" and this one says "perhaps it was struck by a rock," that if the damaged party does not claim "it is certain to me that you know your ox damaged," he is not obligated in an oath. For there, there is no "substance of money" (drara demamona), as he is not claiming money that he gave to him or to his father that he should return them, but rather he claims because of damage; and since he does not know for certain that this one knows, on what basis would they obligate him in an oath? But here, he is claiming money that he gave him for the purchase and knows for certain that it is due to him. And similarly in siman 255, he claims money that he lent to his father, and since he claims with certainty, he need not be concerned with what the defendant says "I do not know," even though he does not know if he is lying or not. And such is the primary law, not like the one who disagrees in this. And if the seller says "I did not sell to you under the presumption that it was entirely gold" and the buyer says "you sold to me under the presumption of it being entirely gold," we look according to the price, as I wrote in section 36 [Mordechai, end of chapter HaMafkid].

If one bought a vessel under the assumption it was tin and sold it, and afterwards it became known that there was silver or gold in it, the second buyer has merited it because the first never merited it, since he did not know of it at all. As has been written in siman 268, a person's courtyard does not acquire for him something of which he has no knowledge at all, and this person did not know that there was gold in it. And the same applies if the entire vessel was so, he did not acquire it [Levush]. And all this is specifically regarding something that might never become known, such as a vessel that requires expert examination. But if something was wrapped in a garment and he handed it to another, the first merited it, for it is the way to unroll it and he would have found it [Netivot HaMishpat]. And so too if it is wrapped in a cloth or the like. But if it was sewn into the garment between the upper lining and the lower, he did not acquire it, for perhaps it would never have become known to him.

One who sells eggs to his fellow and they were found to be addled such that they are not fit for eating, and in a manner where they certainly spoiled while with the seller, it is a mistaken transaction and he returns the money, and even according to the Rambam as I wrote in section 27 [Beit Yosef, and not like the Sma, for the reason is not as he wrote]. Our teacher, the Beit Yosef, wrote that now this is not the practice, and custom nullifies the law. Thus far his words. And we in our days have not heard of this custom, and we must judge according to the primary law. And so too regarding any merchandise that is sealed and closed which one sold to another, even if he also purchased it sealed and closed, nevertheless if a loss or some deception is found in it, the loss is upon the seller, as I wrote there, for one may not defraud others because he himself was defrauded, unless he is his partner or his agent who acted as was proper to act, for then he must accept the loss; this is not the case with a buyer and seller, even if he is a middleman. All the early authorities admit to this, and also the Rambam admits to this as I wrote, not like the one who wished to say that the Rambam holds that in any place where the seller was not negligent he is exempt, but rather his reason is because he was negligent regarding the ox, as I wrote in section 27. And so too if he stipulated that he would give him eggs that were laid and he gave him those found in the innards of a hen after slaughter, or if he stipulated to give him those born from a rooster and he gave him from those that develop from the ground, it is a mistaken transaction [Sma].

An incident occurred regarding Reuven who owed money to Shimon and gave it to him, and after several days he found some of the coins were not good. One of the great authorities ruled that if Shimon claims with certainty that he took the bad ones from him, and Reuven claims with certainty "I gave him good ones," Reuven takes an oath and is exempt. However, if Reuven claims "I do not know if they are mine or not," he must pay, and he has nothing against Shimon but a standard acceptance, for this is like "I do not know if I repaid you," where one is liable to pay. And some say that this is like "I do not know if you lent to me," for he says "I repaid you," but now you say that an error was found in them, "I do not know if I owe you," and he takes an oath of hesset that he does not know because of forgery and is exempt. And so it is implied from our teacher, the Rema, from what he wrote in section 28. And we have already explained this at the end of siman 75, that the mind inclines more toward this opinion, and particularly in a case where he could not have known, for even if we judge it like "I do not know if I returned it to you," it is not possible to obligate him; see there. And it is good to compromise.

One who sells to his fellow garden seeds whose actual seeds are not eaten but rather are for sowing, and he sowed them and they did not sprout, the seller is liable for their guarantee and returns to him the money he took from him, because their ordinary use is for sowing and he cannot say to him "you should have eaten them and not sown them." And even though he also did not know and did not act with negligence in this, nevertheless the loss is his, as has been explained. And even though they were lost in the ground, the buyer is exempt since he did not deviate from the way of the world, as I wrote in section 21. And nevertheless, the buyer also cannot claim from the seller his wages for the labor he labored to sow [ibid.]. And this is specifically when it cannot be attributed to a change in the weather, that the season did not change, and therefore we attribute it to the poor quality of the seeds; but if the land was struck by hail or the like, some change in the weather, he is not liable for their guarantee, for perhaps because of the change they did not sprout. And if the buyer has not yet given the money, the seller is unable to extract it from him unless he clarifies that the ruin is because of the change [it appears to me]. And if he sold him seeds that are eaten, it is not necessary to say wheat and barley, most of which are for eating, that he is not liable for their guarantee when he sowed them and they did not sprout, for he should have eaten them; but even if he sold him flaxseed, which most people buy for sowing, nevertheless since there are those who eat it, he is not liable for the guarantee of the sowing, for in monetary matters we do not follow the majority when the defendant is the possessor. And therefore, if the buyer has not yet given the money, some say the buyer can say "I bought for sowing" since he is the possessor and most buy for sowing; and therefore with wheat and barley, which most buy for eating, the possession of the buyer does not avail [as is apparent from the wording of the Ramah in the Tur, section 18]. And in section 36 the reason will be explained why we do not follow the possession of the buyer against the majority, and that there are those who disagree on this. And if the buyer informed him that he is buying for sowing, even with wheat and barley he is liable for their guarantee. And so is the law regarding things sold for medicine and for dyeing, that if they are fit to eat, he cannot claim from the seller a guarantee for that which they are not fit for medicine or for dyeing, even when most are sold not for eating; and if everyone buys only for medicine and for dyeing, he is liable for their guarantee.

One who purchases an item from another and informed him that he is taking it to a certain place to sell it there, and after he brought it there a defect was found in it, the purchase is voided. The seller cannot say, "Return my item to me here," but rather he returns the money to him and the seller must attend to bringing his merchandise back or selling it there. For everything follows the general rule that we introduced in section 21: that as long as the purchaser did not deviate, even if through his actions the loss increased, the loss is upon the seller. Therefore, if he did not inform him that he would take it to a certain place, and the way of such merchandise is to sell it here and in its surroundings, and he took it to a distant place, it is a deviation, and the purchaser must provide the item for him here. However, if the way of such merchandise is to take it to a distant place, even if he did not inform him, the seller must attend to bringing it here, for the purchaser did not deviate in this [as mentioned above, and so must be the intention of the Rambam and the Tur and Shulchan Aruch in section 21].

When the seller must accept his merchandise back due to its defect from a distant place, nevertheless, he is not liable for the expenses the buyer incurred to transport it there when the seller did not know of the defect, for he too was not negligent and is only liable for the expenses of the return to here. However, if it became known that the seller knew of the defect at the time of his sale to the buyer, he is also liable for the expenses the buyer incurred in its transport, and he is liable according to the laws of garmi, as he is akin to one who causes damage. However, if he did not explicitly state that his intention was to transport it to a certain place, even if many transport it there, nevertheless, if there is even a minority who sell it here, the seller is not liable for the transport expenses, as he can say to him: "You should have sold it here." However, regarding the return expenses, he is certainly liable even in such a case, since the buyer did not deviate from the way of the world, and even if the seller did not know of the defect, as I wrote in section 33.

One who acquires a purchase and a defect is found in it, and afterwards the purchase was lost or stolen: if he informed the seller to come and take his purchase, the guardianship of the buyer is removed and he is not liable for its responsibility. This is specifically when there was time for the seller to come and receive his purchase from the time the buyer informed him; but before this time, and likewise as long as he did not inform him, the responsibility of guardianship is upon the buyer. However, if the object was damaged due to the defect, such as if it became wormy or spoiled, it is in the domain of the seller even when he did not inform him, for what benefit would his notification have provided [Sma]. Therefore, if it was possible to save it from the damage through some tactic and the buyer did not do it, and also did not inform the seller, the loss is upon the buyer. And it appears to me that all these matters are only regarding a defect that the seller did not know of; but when he knew of the defect and sold it to him deceitfully, it is always in the domain of the seller, whether for damage or for theft and loss, even when he did not inform him, for why should the buyer be a guardian over a matter where the seller acted improperly? And regarding a defect that the seller did not know of, and the buyer did not have time to inform him and it was stolen or lost, some say the loss is upon the seller since the buyer did not act negligently, and some say it is in the domain of the buyer, for he is considered a shomer sachar over it until he informs him. And so it appears primary, and it is a kal vachomer from what has been explained, that even when he informed him, as long as it was not within the seller's ability to come, it is in the domain of the buyer; and all the more so when he did not inform him at all, even though he did not have time to inform him. And when it is in the domain of the buyer and it decreased in value at the time of the theft, he only pays according to the time of the theft [Netivot HaMishpat].

One who sells an ox to his fellow and it is found that the ox is a habitual gorer and it is forbidden to keep it because it causes damage—if it cannot be proven whether he purchased it for plowing or for slaughter, such as when the buyer is a person who purchases for both this and that, and there is also no proof from the price of the purchase, such as when meat is expensive and the price of an ox for slaughter is like the price of an ox for plowing—the buyer cannot say "I took it for plowing" and have it be a mistaken purchase, for the seller can say "I sold it to you for slaughter." And even though the majority of people purchase for plowing, we do not follow the majority in monetary matters to extract from the possessor. Therefore, if the money is still in the hand of the buyer, it is not only required if the majority purchase for plowing that it be a mistaken purchase, but even if they are equal, the burden of proof is upon the claimant. However, when the majority purchase for slaughter, we extract from the buyer. And why do we follow the majority in this case and not the possession as we do with the seller? Because to sustain the purchase we follow the possession, for in this the possession of the purchase also assists, and even though this is not a complete possession, nevertheless it is like a possession since they made a purchase between them; but to follow possession against the majority and cancel the purchase, we do not do so, for a majority is certainly preferable to possession alone [it appears to me]. And there is one who disagrees in this and holds that the law of the buyer is like the law of the seller [Netivot HaMishpat]. And it appears to me that the primary view is like the former opinion [and so it appears from the wording of the Ramah in the Tur, section 18]. And if the buyer is not accustomed to purchasing except for plowing and the seller knows him, this is always a mistaken purchase. And if he is accustomed to purchasing for slaughter and for plowing and there is proof from the price of the purchase, that he gave a high price like the price of an ox for plowing, he certainly purchased it for plowing and it is a mistaken purchase. And if he gave like the price of an ox for slaughter, he certainly purchased it for slaughter. And when there is proof in the price, there is no distinction between majority and minority or between a possessor and one who is not a possessor, for the proof of the price is a complete clarification. And even though we hold in siman 220 that the price is not evidence, that is in a place where the price contradicts the primary language, such as regarding a name, which is not the case here, for whether he purchased it for plowing or whether he purchased it for slaughter, the name "ox" is upon it; certainly the price is evidence [Tur]. And in a place where the law is with the seller, the seizure by the buyer is of no avail, and likewise the reverse [Netivot HaMishpat].

In any case where it is a mistaken transaction and the seller must return the money to him, if he has money, he must specifically give him money, for his status is like that of a creditor. If he does not have money, he gives him the equivalent value in movable property, and if he does not have movable property, he gives him land. This is unlike the one who says that he may give him land even when he has money. Also, it is not within his power to say to the buyer, "Behold, the purchase is before you; exert yourself and sell it," for the exertion is not incumbent upon him. When he pays with land, he accepts upon himself an acceptance that he has no money or movable property [Nimukei Yosef, beginning of the sixth chapter of Bava Batra]. When he has nothing at all, of necessity the buyer must retain the purchase for his money, and the buyer cannot compel him to sell it to another and pay him in money [as is implied in the Gemara ibid.]. However, that which is lacking from the money the buyer gave is certainly remains a debt upon the seller.

One should not raise a difficulty based on what has been explained, that in matters of money one does not follow the majority but rather follows the chazakah; if so, when three sit in a beit din and two obligate while one exempts, and we follow the majority to obligate the litigant and extract money from his possession, let us say that one does not follow the majority in matters of money. For it can be said that this which we say, that one does not follow the majority, is not because the chazakah of money is superior to a majority, but rather that it is like half and half [Nemukei Yosef ibid.]. But regarding judges, did the Torah not decree "to incline after the majority," such that it is not like half and half [it appears to me]. And furthermore, it appears to me that certainly a majority is superior to a chazakah of money, for even a chazakah of the body, which is superior to a chazakah of money as is proven in the Gemara [HaMadir 75b according to Rabban Gamliel], nevertheless a majority is superior to it, and all the more so to a chazakah of money. Rather, the reason is that since perforce the minority also exists in the world, we do not have the power to extract from the possessor, for he can say, "it is established for me (kim li) that I am from the minority," and with what can we contradict him [see Rashbam ibid. s.v. lo azlinan]. But in a beit din, where the Torah decreed "to incline after the majority," perforce the minority is as if it does not exist, and how can he say "I am from the minority" when the Torah has nullified this minority [it appears to me that this is the intent of Tosafot at the beginning of chapter HaManiach, see there].